The nonprofit watchdog group Cause of Action is challenging the Federal Trade Commission’s (FTC) decision that it is not a member of the media, and asking the District of Columbia Court of Appeals to overturn a lower court’s ruling in favor of the FTC.
First Amendment groups and national news outlets, led by the Reporters Committee for Freedom of the Press, rallied behind Cause of Action in an amicus brief filed Tuesday, arguing that any narrow definition of media would stifle legitimate outlets and chill oversight of government.
Two years ago, the FTC denied requests from Cause of Action for fee waivers on several Freedom of Information Act (FOIA) requests, saying it did meet the qualifications because it was not a news media outlet.
Cause of Action appealed the denial, but the U.S. District Court of Washington, D.C., ruled in favor of the FTC in 2013, finding that the watchdog group did not qualify as media because it was insufficiently disseminating news to the public.
In its latest appeal, Cause of Action says the FTC’s decision “presents a cautionary tale about the harm done when agencies use fee waiver categorizations to chill the government accountability activities of nascent nonprofit organizations in the age of new media, especially when those nonprofits, like Cause of Action (COA) here, criticize agency actions.”
The watchdog group also argues the lower court’s ruling conflicts with the Open Government Act of 2007, which mandates that federal agencies and courts recognize “alternative media.” The act also defines a news representative as “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”
Cause of Action also points out that the U.S. District Court for Washington, D.C., recognized a similar watchdog group as a member of the media in a 2003 decision.
“The FTC’s repeated denial of our status as a news media organization threatens all new media and nonprofit news organizations that seek fee waivers for FOIA requests,” Cause of Action president Dan Epstein said in a statement. “Simply because the FTC feared that unfavorable information would be made public, we were unfairly denied access. If every agency behaves like the FTC, it will be devastating to those who fight for government accountability and transparency. The FTC’s job is not to play news editor and decide what is or isn’t news.”
This is the first time a federal appeals court has considered the issue. Because Cause of Action’s appeal will set precedent, the amicus brief argues the case “has implications beyond the outcome for the parties directly involved, and could make it difficult for the news media to fully report on the workings of government for the benefit of the public.”
“This case centers on a question that strikes at one of the central accountability principles of democratic government: how far government agencies and the courts can go in defining what is ‘news’ and of ‘public interest,’ and this merits disclosure without hefty fees to the requestor,” the Reporters Committee brief reads.
Cause of Action and the amicus brief argue that the media landscape has changed so dramatically in recent years that any narrow definition of “media” by the government will give agencies the power to burden alternative outlets pursuing public records with prohibitive fees.
“Despite the best efforts of Congress to emphasize how important it is to broadly define ‘representative of the news media' for the purposes of a FOIA fee waiver, courts and government agencies have continued to apply inappropriately narrow definitions," the brief argues. "This court should ensure that the standard applied aligns with what Congress intended and what best serves FOIA’s goals of government transparency and accountability."
Other organizations that joined the amicus brief include the First Amendment Coalition, Investigative Reporting Workshop at American University, National Press Photographers Association, National Public Radio, North Jersey Media Group, the Seattle Times Company, Stephens Media LLC, the Washington Post, and the Daily Caller News Foundation.